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IZHAR ALI versus STATE OF U.P. AND OTHERS

High Court of Judicature at Allahabad

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Izhar Ali v. State Of U.P. And Others - WRIT - A No. 47125 of 2006 [2006] RD-AH 14786 (30 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 1

Civil Misc. Writ Petition No. 47125 of 2006

Izhar Ali Vs. State of U.P. and others

Hon'ble D.P. Singh, J.

Heard counsel for the petitioner and Sri Avanish Mishra for the contesting respondent.

This petition has been filed for a writ of mandamus directing the respondents for payment of pension and other pensionary benefits to the petitioner.

It is stated that the petitioner after being inducted in the respondent Corporation as Assistant Traffic Inspector was promoted and finally while working as Traffic Superintendent he was superannuated on 31.5.2001. He allegedly made an application in July, 2001 for pension, retiral benefits and gratuity etc. However, he was paid a sum of Rs.1,15,526/- from the Employees Provident Fund and was also offered remaining amount but he refused and offered to return the amount already paid as, he claimed that, he held pensionable post. The Regional Manager by a detailed order dated 9.5.2003 considered the claim of the petitioner and held that the petitioner was not entitled to pension and he may lift the remaining amount of the provident fund. However, the petitioner continued to make representation and when no action was taken, he has preferred this petition.

A preliminary objection has been raised that even though the petitioner retired about 5 years ago and was paid more than 80% of his employees provident fund, he has approached the Court belatedly and thus the petition is hit by laches.

The petitioner has tried to explain the laches by stating that he had moved several applications and when finally no action was forthcoming, he has approached this court.

The petitioner has failed to show any provision wherein he is entitled to make representation one after other. He retired about five years back and even after the order dated 9.5.2003 that he was not entitled to pension, the petitioner has waited for more than three years to approach this Court. Mere filing of repeated non-statutory and unsolicited representation  cannot be taken as a defence or explanation for latches. The Apex Court about two scores of years ago in K.B. Laxmiya Shetty  and others v. State of Mysore and others [A.I.R. 1967 S.C. 993] and again reiterated in Gyan Singh  v. High Court Punjab & Haryana [A.I.R. 1980 S.C. 1894] has held that such explanation for inordinate delay and latches cannot be a ground for exercising the extra ordinary jurisdiction under Article 226 of the Constitution of India. This view has again been reiterated by the Supreme Court in the case of Karnataka Power Corporation Ltd. v.  K. Thangappan [2006 (4) S.C.C. 322]. Apart from that the Apex Court has held in the case of Vallabh Glass Works and others v. Union of India [1984 (3) S.C.C. 362] that where the remedy to a right is lost under a common law, which in the present case is three years, the extra ordinary power under Article 226 of the Constitution  of India should not be exercised.

However, it is contended that at least the respondents may be directed to decide his representation. Apart from the fact that no statutory provision has been cited to show that the respondents are duty bound to decide the representation, such an order would have the effect of enlarging the time for limitation. A Division Bench of our court in the case of Mohd. Sajid  Vs. State of U.P. [2006 Alld. Civil Journal 1319] relying upon the judgment of the Apex Court in the A.P.S.R.T.C. and others Vs. G. Srinivas Reddy and others [2006 (3) J.T. 189] has held that the court should not pass orders which will result in enlarging the time of limitation.

For the reasons above, the court is not inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. Rejected.

Dt; 30.8.2006

AU/


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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